CHOOSING TRIBAL LAW: WHY STATE CHOICE-OF-LAW PRINCIPLES SHOULD APPLY TO DISPUTES WITH TRIBAL CONTACTS. Katherine J. Florey

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1 CHOOSING TRIBAL LAW: WHY STATE CHOICE-OF-LAW PRINCIPLES SHOULD APPLY TO DISPUTES WITH TRIBAL CONTACTS Katherine J. Florey

2 Introduction In the past few decades, the Supreme Court has decided a series of cases purporting to clarify the respective roles of state and tribal courts in adjudicating disputes that involve Indian litigants or arise in Indian country. As a result, a detailed set of rules now governs whether such suits must be filed in a state or tribal forum. Since the foundational case of Williams v. Lee, 1 for example, it has been clear that a non-indian plaintiff whose case concerns an Indian defendant and an on-reservation transaction must file suit in tribal court. More recently, the Supreme Court has effectively required that suits against a non-indian arising out of events on privately owned land generally must be brought in state court. In other situations for example, a lawsuit that involves non-indians, but arguably concerns core matters of tribal sovereignty the proper choice of forum is more uncertain. It may be a close question whether the suit may be brought in tribal court or must be filed in state court, and the ultimate determination of which forum is proper may turn on seemingly inconsequential facts: whether, say, the tribe or the state had responsibility for maintaining the highway on which an accident occurred, 2 or whether alleged spoilation of evidence occurred on or off the campus of a tribal college U.S. 217 (1959). 2 See Strate v. A-1 Contractors, 520 U.S. 438, 454 (1997). 3 See Smith v. Salish Kootenai College, No , (9 th Cir. Jan. 10, 2006) (en banc) (slip opinion). In Smith, the Ninth Circuit found that the Confederated Salish and Kootenai Tribes could assert jurisdiction over a spoliation of evidence claim against a nonmember. Among the factors the Ninth Circuit considered was the degree of the suit s connection to Indian lands, which in turn required it to consider where the alleged destruction of notes from an accident investigation report undertaken by Salish Kootenai College had occurred. The college was located on tribal lands; thus, though the record was not clear about where the notes had in fact been destroyed, the court nonetheless found that the college had control over the notes and that their loss or destruction thus involved activities conducted or controlled by a tribal entity on tribal lands. Slip. op. at

3 The question of which court should hear cases implicating tribal interests thus often requires a complex and technical answer. It is therefore all the more remarkable that courts considering such cases have devoted almost no attention to the question of which law should apply once a forum has been chosen. 4 Instead, the Supreme Court has repeatedly suggested that the jurisdictional reach of tribal courts is identical to the scope of the tribe s legitimate regulatory interests 5 ; similarly, state courts have often assumed that cases heard in state court will necessarily be governed by state law. 6 As a result, courts have tended to treat the issues of which forum should hear a case and which law should be applied to it as if they were a single question simply assuming, without explicit consideration of the issue, that the forum in which the case is brought will apply its own law. This assumption, to be sure, does not entirely lack foundation. Under current jurisdictional rules, cases involving Indians and arising on tribal land must generally be heard in tribal court, while cases against nonmember defendants are usually restricted to state court. In such situations, because the case likely arises in the forum and involves parties who have links to it, most choice-of-law theories would dictate that the forum should apply its own law. 7 4 See Katherine C. Pearson, Departing from the Routine: Application of Tribal Law under the Federal Tort Claims Act, 32 Ariz. St. L.J. 695, 725 (2000) (noting that the focus in federal Indian law cases has often been on adjudicative authority or jurisdiction to decide disputes, rather than on the choice-of-law used by the jurisdiction to decide disputes ). 5 See Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997) ( As to nonmembers... a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction. ). 6 See Laurie Reynolds, Adjudication in Indian Country: The Confusing Boundaries of State, Federal, and Tribal Jurisdiction, 38 Wm. & Mary L. Rev. 539, 558 (1997) (noting that, for many state courts, the presence of substantial off-reservation contacts automatically has a two- pronged result: the state court has adjudicatory jurisdiction, and state law applies to the dispute ). 7 See, e.g., Restatement (Second) of Conflict of Laws (1971) 145, 188 (providing that, in both tort and contract cases, parties domicile and the place of relevant events are important factors in determining which law to apply). 2

4 Further, there are historical and philosophical reasons why tribal law and tribal courts should be closely tied together. Tribal courts are often an integral part of tribal life; indeed, the federal government has supported tribal judicial systems as a primary means of fostering tribal autonomy. 8 There may also be practical difficulties in applying tribal law in nontribal forums. In some tribes, tribal law is administered by elders who may not speak English 9 ; in others, the procedures tribal courts use to resolve disputes are inextricable from substantive law. 10 Moreover, tribal and state courts have historically regarded each other with wariness and suspicion. Many commentators reasonably fear that state courts will not give adequate consideration to tribal interests, and that tribes and their members are generally better off if disputes involving tribal matters are heard in tribal forums. 11 Yet while these arguments have some persuasive force, they fail to add up to a conclusive justification for keeping tribal law out of state court. To begin with, the arguments for restricting state-court application of tribal law are built on a jurisdictional landscape that has changed. As the Supreme Court has steadily limited tribal jurisdiction, it is no longer possible to assume that tribal courts have power to hear all cases involving substantial tribal contacts. Further, even where tribal courts have jurisdiction over individual claims, under certain circumstances state courts are more likely to have jurisdiction over an entire case. 12 It is likely, therefore, that many 8 See, e.g., Pub. L. No , 107 Stat (1993). 9 See John J. Harte, Validity of a State Court s Exercise of Concurrent Jurisdiction, 21 Am. Indian L. Rev. 63, (1997); Christine Zuni, Strengthening What Remains, 7 WTR Kan. J.L. & Pub. Pol y 17 (1997) (describing the important cultural role of native languages in many tribal judicial proceedings). 10 Certain tribes, for example, use a mediation process designed to repair relationships between the parties rather than the traditional Anglo model in which an ostensibly neutral arbiter designates a winner and loser. See, e.g., John v. Baker, 30 P.3d 68, 76 (Alaska 2001) (describing Northway Tribe s mediation-like dispute resolution procedures). 11 See Harte, supra note 9, at 91 (arguing that [t]ribal courts, and tribal courts alone, should interpret tribal law, and a state court should enter a judgment of dismissal where a case involves the interpretation of tribal law ). 12 This is often the case when a tribe member wishes to sue a nonmember defendant. It is more widely true in P.L. 3

5 litigants make the reasonable choice to bring all possible claims in state court, rather than splitting them between state and tribal court. As a result of these developments, many cases that concern Indian litigants and arise in Indian country cases that were once handled by tribal courts now must be brought in state court if they are to be heard at all. In consequence, state courts are increasingly confronted with cases that involve substantial tribal contacts, cases to which, under the choice-of-law principles followed by most states, tribal law would ordinarily apply. Because of concerns about the propriety of applying tribal law in state court, however, state-court judges may seek an alternative such as concluding that the court lacks jurisdiction over all or part of a case 13 or manipulating choice-oflaw principles to the extent necessary to find that the case should be governed by state law. 14 These results, while perhaps well-intentioned, often fail to serve the interests either of tribes or of individual litigants. As it is, restrictions on tribal jurisdiction have made state court the only available forum in many cases involving tribal matters. If state law rather than tribal law is applied to such cases, the already-narrowing sphere of tribal influence will only shrink further. By contrast, the application of tribal law in such circumstances has the potential to promote 280 states, where state courts have concurrent jurisdiction over tribal matters but tribal courts do not have concomitant jurisdiction over cases traditionally heard by state courts. 13 See, e.g., Risse, 585 N.W. at 879. Courts may also recast what is essentially a tribal-law issue as a jurisdictional issue. See, e.g., Begay v. Roberts, 807 P.2d 1111 (Ariz. App. 1990) (holding that the lower court, while possessing jurisdiction over the underlying case, had lacked jurisdiction to issue a writ of garnishment against a Navajo defendant s wages because Navajo law did not provide for such a remedy). 14 See Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 249 (Miss. 1997) (stating, without elaboration, that state and tribal law on a given subject were identical and choice-of-law analysis hence unnecessary); Warm Springs Forest Products Industries v. Employee Benefits Insurance Co., 300 Ore. 617 (1986) (finding that Oregon law applied to contract entered into by a tribal corporation; Louis v. United States, 54 F. Supp. 2d 1207, 1210 (D.N.M. 1999) (finding that, under federal statute, Congress likely intended state, rather than tribal, law to apply because of the difficulty in proving the existence and substance of any tribal law ). 4

6 tribal autonomy and self-determination by providing a way in which tribal interests can be taken into account even where tribal courts lack jurisdiction over a case. State-court application of choice-of-law principles in cases with tribal contacts also has the potential to benefit litigants. As current doctrine stands, the Supreme Court, acting under the assumption that state and tribal forums will each apply their own law, has devoted considerable attention to developing rules that determine whether a case involving tribal contacts should be heard in tribal court or state court. Because the way in which these rules should apply to any given case is often unclear, however, they can cause litigants considerable uncertainty. Further, these judicially crafted rules can often lead to illogical and inefficient results as when, for example, they mandate that a given plaintiff s claim must be heard in state court, while a defendant s counterclaim must be heard in tribal court. 15 Many of these problems could be avoided if the problem of allocating cases between state and tribal authority were regarded not merely as a forum-selection or jurisdictional problem, but also as a choice-of-law one. Forum-selection rules tend to dictate an all-or-nothing solution. Even if a case involves an equal mixture of state and tribal contacts, it ultimately must be brought either in state court or in tribal court. By contrast, choice-of-law doctrine is far more flexible and individualized. Unlike the decision whether to allow a claim to be heard in a particular forum, which generally must be made at the outset, choice-of-law decisions can be made on a case-by-case basis and in conjunction with a decision on the merits. A choice-of-law approach is 15 Under Williams v. Lee, 358 U.S. 217 (1959), and Strate v. A-1 Contractors, 520 U.S. 438 (1997), this could be the case if a member of a tribe asserted a claim against a nonmember in state court, and the nonmember wished to assert a counterclaim; it would also be the case if a tribe member wished to counterclaim against a nonmember who sued her in state court. 5

7 thus both more efficient from a litigant s point of view and more suited to a balanced accommodation of state and tribal interests. Finally, there is little evidence that encouraging state courts to apply choice-of-law principles in the tribal context would create the practical difficulties that commentators have sometimes feared. Although the problems entailed in state-court interpretation of tribal law are real, they are also easy to overstate. It is true that the law of certain tribes may be difficult for outsiders to understand or apply. Many other tribes, however, rely to some degree on principles of Anglo-American jurisprudence familiar to state courts. 16 Frequently, tribal codes look to state law as a model, and tribal courts may borrow state law where no tribal regulation exists. 17 While the tribal law applied in these courts may not mirror exactly the law of any given state, the differences that exist are likely to be the sort of routine conflicts that state courts are accustomed to negotiating: whether to apply a tribal ordinance allowing for unlimited punitive damages where state law imposes a cap, 18 or whether or not a creditor must make use of judicial process before repossessing property. 19 In cases such as these, where there is little possibility for misunderstanding, it is likely that many tribes will accept and, in fact, welcome the broader application of their laws. Further, in cases where tribes do not wish to have their law applied by outsiders, choice-of-law theory is flexible enough to take such preferences into account, thus minimizing the risk of undermining tribal authority. 16 For a discussion of some ways in which tribal courts integrate traditional and Anglo practices, see Gloria Valencia- Weber, Tribal Courts: Custom and Innovative Law, 24 N.M.L. Rev. 225, (1994). See also Pat Sekaquaptewa, Evolving the Hopi Common Law, 9-SUM Kan. J.L. & Pub. Pol'y 761 (2000), for a fascinating account of how Hopi judges are attempting to develop Hopi law to ensure a tight fit between Western justice models and persisting Hopi ways. 17 See William C. Canby Jr., AMERICAN INDIAN LAW 214 (1998). 18 See, e.g., Cheromiah v. United States 55 F. Supp. 2d 1295 (D.N.M. 1999). 19 See, e.g., Tempest Recovery Services v. Belone, 74 P.3d 67 (N.M. 2003). 6

8 This article proceeds in three parts. Part I reviews in turn the two principal strands of Indian law doctrine, as reflected in Supreme Court cases: first, cases that attempt to foster tribal autonomy; second, cases that impose strict limits on tribal regulatory and adjudicative power over nonmembers. Part I then outlines two serious problems with the current state of the law: first, that the complex and highly fact-bound set of jurisdictional rules the Court has developed leads to uncertainty and inefficiency in choice of forum; and second, that the Court s decisions have given insufficient weight to tribal interests. Part II examines the possibility that wider application of tribal law in state court could help to address these concerns by reducing the jurisdictional friction between states and tribes and permitting tribal interests to be taken into account more fully. Part II first sets forth the argument that, under prevailing choice-of-law principles, tribal law should be applied more broadly in state court than it generally has been. It explores the way in which choice-of-law concepts can be adapted to the distinctive features of tribal sovereignty, and discusses why such an approach would have advantages over the current one. Part III discusses potential objections to the application of tribal law by state courts: first, that it might raise due process concerns; second, that it might be preempted by federal Indian law; third, that application of tribal law will inevitably undermine tribal autonomy. Rejecting these arguments, this article ultimately concludes that state-court application of tribal law will help state courts to handle cases with tribal contacts in a way that is fairer and more straightforward an outcome that will ultimately work to the advantage of both litigants and tribes. 7

9 I. A Thicket of Rules: Tribal-State Case Allocation Under Current Law While a detailed set of rules governs the allocation of cases between state and tribe courts, these rules are not the product of a comprehensive body of doctrine or statutory scheme. Instead, most of the principles that determine whether a case should be brought in state or tribal court are the result of judicially formulated, fact-specific solutions to the problems presented by individual cases. Taken as a whole, these forum-selection rules often, perhaps unsurprisingly, lead to illogical or unexpected results. The seeming chaos of the Supreme Court s case law is in part the product of the two central principles by which the Court has been guided, which have often pointed in conflicting directions. On the one hand, the Court has sought to protect tribes right to govern autonomously, free from state interference. As a result, the Court has sought to ensure that tribal courts retain exclusive jurisdiction over the cases that seem most likely to implicate core tribal interests, and to protect tribal courts, like other instruments of tribal self-governance, from sometimes-hostile state policies. 20 Further, the Court has often resisted Congress s efforts to promote assimilation at the expense of tribal authority through, for example, the Court s decision to adopt a narrow construction of P.L. 280, a federal statute that gives a handful of states concurrent jurisdiction over tribal disputes In the nineteenth century and parts of the twentieth, the Court often acted as a lone if inconsistent and inescapably colonialist champion of tribal interests that have often been encroached upon by state governments and ignored in national electoral politics. For an extensive discussion of the Court s present and historical role, see Philip Frickey, (Native) American Exceptionalism in American Public Law, 119 Harv. L. Rev. 431 (2005). More recently, Congress and the Bureau of Indian affairs have become more sympathetic to the goal of tribal autonomy, and the Supreme Court s pro-sovereignty decisions have had the effect of furthering legislative and executive policy rather than hindering it. 21 See Bryan v. Itasca Country, 426 U.S. 373, 388 (1976) (discussed more fully infra at Part IIIB). 8

10 At the same time that it has sought to protect tribal institutions, however, the Court has also at times looked at those institutions with suspicion. Tribal governing bodies and tribal courts are not subject to the constraints of the Constitution, 22 and perhaps in consequence, the Court has been reluctant to allow them to assert authority over those who are not voting, participating members of the tribe. While insisting that tribes are more than voluntary organizations, 23 the Court has nonetheless sharply constrained tribes ability to govern those who have not taken affirmative steps to associate themselves with the tribe. 24 Under current law, therefore, nonmembers who stand in no special relationship to tribes generally will not be subject to tribal law and cannot be haled into tribal court against their will. As it has sought to promote these two often-conflicting goals, the Court has mostly sought to regulate the allocation of cases involving tribal contacts through one primary method: by assigning a case either to state court, where state law will presumptively apply, or to tribal court, where it will likely be governed by tribal law. Further, the Court has developed such procedural mandates on a case-by-case basis, considering only rarely if at all how they interact as a whole. Therefore, like the contradictory aims they are designed to serve, the caseallocation rules the Court has developed often pull in two directions. For example, while the Supreme Court has, on the one hand, emphasized the centrality of tribal courts to tribal sovereignty, it has also severely undermined the power of tribal courts to hear disputes that have a significant effect on tribes well-being. Moreover, the current rules of forum allocation protect 22 See Talton v. Mayes, 163 U.S. 376 (1896). 23 See Duro v. Reina, 495 U.S. 676, 688 (1990) ( The tribes are, to be sure, a good deal more than private voluntary organizations, and are aptly described as unique aggregations possessing attributes of sovereignty over both their members and their territory. ) (internal citations and quotation marks omitted). 24 See Canby, supra note 17, at 112 (noting Supreme Court s recent focus on tribe membership). 9

11 certain litigants interests while ignoring others. Indian defendants, for example, are shielded from being sued in a state forum, while Indian plaintiffs are severely hampered in their ability to sue nontribal defendants in a forum of their choice. This section considers these developments and their effects. It starts by setting forth a brief history of tribal sovereignty and the relationship between tribal and state courts. It then considers in turn the two main approaches to tribal sovereignty the Supreme Court has pursued and the concrete procedural rules those policies have created. Throughout, this section seeks to demonstrate the problems inherent in the single, problematic method assigning jurisdiction over particular types of cases to either a state or a tribal forum by which the Court has defined and enforced the respective limits on state and tribal sovereignty. A. Historical Background: Tribal Autonomy and Geographic Fragmentation For a variety of historical reasons, unique problems exist in allocating cases between state and tribal courts and in translating choice-of-law principles to the tribal context. Because of various efforts by the federal government to transfer tribal trust land to private owners, the geographical reach of a tribe s political control is often uncertain. Similarly, the degree of sovereignty tribes have been thought to possess in relationship to states and the federal government has shifted over time, and remains unclear today. This section sketches forth some of the historical background necessary for an understanding of the current state of the law. Only fairly recently have procedures for allocating cases between state and tribal court have become necessary. For most of the nation s history, tribal judicial systems, where they existed at all, functioned with almost complete autonomy. Until the end of the nineteenth century, tribes performed the task of keeping order on their lands themselves, using both formal 10

12 and informal judicial processes, 25 and state and federal courts were frequently willing to recognize and enforce the judgments of tribal courts. 26 (By contrast, only a minority of states today extends automatic or near-automatic recognition to tribal judgments. 27 ) While federal courts sometimes intervened to protect tribes against hostile state governments, 28 tribes and states had little formal interaction. In fact, only in 1924 did Indians living on a reservation become recognized as citizens of the surrounding state as well as members of a tribe. 29 By the late nineteenth century, however, the federal government had become increasingly interested in weakening the power of tribes and assimilating Indians into Anglo- American culture. 30 To handle tribal civil controversies, the federal government began to 25 See Blake A. Watson, The Curious Case of Disappearing Federal Jurisdiction Over Federal Enforcement of Federal Law, 80 Marq. L. Rev. 531, (1997); Zuni, supra note 9 (arguing that prior to the end of treatymaking with tribes in 1871, the federal policy was one of respect for tribal self-government and traditional forms of tribal justice. ). 26 In United States ex rel. Mackey v. Coxe, 59 U.S. (18 How.) 100, 102 (1855), the Supreme Court held a tribal court probate order was entitled to be enforced by District of Columbia courts, on the basis that the tribe was included in the definition of a territory under the relevant federal probate statute. See also Stacy L. Leeds, Cross- Jurisdictional Recognition and Enforcement of Judgments: A Tribal Court Perspective, 76 N.D. L. Rev. 311, 320 (2000), at 320 (noting that, while some question was considered to exist about whether recognition of tribal judgments was required by the constitutional Full Faith and Credit Clause or its implementing statute, 28 U.S.C. 1738, which specifically encompasses territories, in practice many lower courts automatically gave full faith and credit to tribal judgments). 27 Despite early precedent suggesting that tribal judgments are entitled to full faith and credit, see Robert Laurence, The Role, If Any, for the Federal Courts in the Cross-Boundary Enforcement of Federal, State, and Tribal Money Judgments, 35 Tulsa L. J. 1, (1999), the majority of state courts today have concluded that the constitutional Full Faith and Credit clause and its implementing statute, 28 U.S.C. 1738, do not command state-court recognitions of tribal judgments. While few states, such as New Mexico, take the opposite view, finding that tribal lands are included in the statute s reference to territories, see Leeds, supra note 26, at 332, most state courts grant a measure of deference to tribal judgments that falls well short of the automatic recognition they must accord sisterstate judgments under 28 U.S.C See Canby, supra note 17, at See, most famously, Worcester v. Georgia, 31 U.S. 515 (1832). 29 Canby, supra note 17, at 23. In 1924, the Indian Citizenship Act granted Indians federal citizenship; through the Fourteenth Amendment, Indians thus also became citizens of the state in which they resided. See id. 30 The practice of allowing tribes autonomy in handling their legal affairs became particularly controversial following a well-publicized 1883 case in which the Court held that no jurisdiction existed in federal court over a murder of one Indian by another. See Ex parte Crow Dog, 109 U.S. 556 (1883). In response to public perception that tribal justice was inadequate in cases of violent crime, see Canby, supra note 17, at 19-20, Congress passed the Major Crimes Act, which granted federal courts jurisdiction over a variety of serious crimes in Indian country, including those in which the perpetrator and victim were both Indians. See 18 U.S.C. 1153(a). 11

13 establish Courts of Indian Affairs, which applied federal common law rather than tribal law. 31 In addition, in 1887 Congress enacted the General Allotment Act, 32 which authorized grants of reservation land to individual Indians, to be held in trust by the federal government for a period of time before passing into private ownership. 33 Among other significant provisions, the Act allowed any remaining reservation land to be made available to non-indians; in addition, it made Indian allottees subject to state law. 34 While allotment was applied to different reservations to varying degrees, the substantial majority of reservation land was ultimately allotted, and much of the allotted land was ultimately sold to non-indians. 35 By creating a checkerboard pattern of ownership, the effects of allotment added an element of uncertainty to tribal jurisdiction and strengthened the arguments of those who believed that state courts and state law should have a role in Indian country. 36 As will be subsequently discussed, the checkerboard pattern thus created resulted in lasting uncertainty about the territorial reach of any given tribe s power. In recognition of the difficulties allotment had caused, federal policy in the 1930s shifted in a radically different direction. Federal officials began to recognize the virtues of tribal autonomy not just as a default state of affairs, but as a goal towards which to strive. The Indian Reorganization Act of returned some unallotted land to tribal control and provided 31 Canby, supra note 17, at See 24 Stat Canby, supra note 17, at Id. 35 Id. at 22 (noting that Indian-held land declined from 138 to 48 million acres from 1887 to 1984). 36 See Phillip Allen White, The Tribal Exhaustion Doctrine, 22 Am. Ind. L. Rev. 65, 75 n.31 (1997) ( [A]s non- Indians moved onto reservations, so too did state law. ) U.S.C. 461 et seq. 12

14 a structure by which tribes could register constitutions with the federal government. 38 Many tribes formalized their structures of governance in written constitutions and re-established their defunct tribal courts. 39 Nonetheless, because allotment had eroded the geographical integrity of reservations, the revived tribal courts were thus unable to function with anything like the autonomy their nineteenth-century counterparts had enjoyed. 40 By the 1950s, assimilationism had come back into vogue, this time in the form of the policy known as termination, which was designed to do away with tribes as political entities and with reservations as distinctively Indian land. 41 In many cases, tribes were dissolved, tribal lands were sold, and individual Indians were encouraged to relocate to non-indian areas. 42 Further, in contrast to the program of allotment, states as opposed to the federal government became a primary instrument of weakening tribal political power. Thus, as part of the assimilation process, Congress granted certain states broad jurisdiction to decide disputes in Indian country. 43 Shortly thereafter, Congress provided a more comprehensive grant of jurisdiction in the form of Public Law 280, 44 which gave five states (California, Minnesota, Nebraska, Oregon, and Washington, with a sixth jurisdiction the then-territory of Alaska added in 1958) extensive criminal and civil adjudicatory authority over reservations See Canby, supra note 17, at See Leeds, supra note 26, at 324; Zuni, supra note See Canby, supra note 17, at 24 (describing the post-allotment era as a marked change from [earlier times], when reservations were fairly homogeneous territories with clearly defined boundaries and where most non-indians were present expressly to engage in some form of intercourse with the Indian inhabitants ). 41 Id. at Id. at See Robert B. Porter, The Jurisdictional Relationship Between the Iroquois and New York State, 27 Harv. J. on Legis. 497, See Canby, supra note 17, at 219. As discussed infra at Part IIIB, the Court in Bryan, 426 U.S. at 373, gave the civil-jurisdiction provisions of P.L. 280 a fairly restrictive interpretation. 45 Id. A few Indian reservations within the affected states were exempted from P.L. 280 s coverage either in the original statute or through later-added retrocession provisions. 13

15 Like allotment, termination was ultimately recognized as a failure a policy that disrupted the fabric of tribal life while failing to integrate tribe members, either economically or culturally, into non-indian society. 46 Starting in the Nixon administration, the federal government began to shift back toward autonomy-promoting policies an ideology that has remained more or less in place to the present day. 47 At various points, therefore, the federal government has embraced two essentially opposite goals 48 assimilationism and tribal autonomy and tribal institutions have been influenced not only by these conflicting policies but by the way in which the federal government has swung back and forth between them. In periods when the federal government adopted proautonomy policies, it did so in large part by encouraging the development of tribal law and tribal institutions, including tribal courts. By contrast, the federal government has primarily implemented assimilationist policies in two ways first, by disrupting the geographical integrity of Indian reservations, and second, by increasing the role of states in Indian life. Thus these two sets of policies, designed to achieve opposite ends, have resulted in an unintended hybrid: reservations that often have strong tribal institutions, including courts, but that are geographically fragmented, 49 and that share regulatory power, sometimes uneasily, with states See Canby, supra note 17, at Id. 48 The approach of the political branches can be compared to that of the Supreme Court, which as the following section argues has vacillated over time between strong concern for the rights of tribes on the one hand and fears about abuses of tribal power on the other. The Court and the political branches have not, however, always embraced the same trends at the same time; for example, the Court decided Williams v. Lee, a case that strongly embraces tribal autonomy, at a time when Congress was still flirting with assimilationism. 49 There are, of course, a multitude of reasons why the identity of tribes may not be as strongly grounded in geography as that of other political entities may be. Most obviously, tribes may have lost, through treaties or forced relocations, land they originally inhabited land or that has political or cultural significance to the tribe. Congressional policies of allotment and termination, however, have also played a significant role. See Canby, supra note 17, at See Canby, supra note 17, at (discussing extent of state regulatory power in Indian country). 14

16 Thus, as a result of various federal policies, tribes have some common characteristics of other sovereigns, including, for example, courts, political institutions, and sovereign immunity, 51 while lacking others, such as political authority within their borders that operates irrespective of the ownership of individual parcels of land. As the following section argues, this particular set of characteristics has shaped the way in which the Supreme Court has developed what I will call, for lack of a better term, its jurisprudence of case allocation. 52 In other words, the Court has at various times treated tribes like sovereigns; it has sought to protect tribal courts from state interference and, in particular, to prevent states from asserting jurisdiction over sensitive tribal issues. 53 At the same time, the Court has also refused to assume that tribes have all the usual characteristics of sovereigns; it has, for example, held that tribal courts are not courts of general jurisdiction 54 and that in striking contrast to state courts their jurisdiction is only as broad as the tribe s underlying regulatory power. 55 While these two judicial goals in themselves often point in different directions, the problem is compounded by the fact that reservations themselves are often fragmented, encompassing at least three different categories of land: land owned by tribe members, land owned by non-indians or Indians who are not members of the tribe, and tribal trust land. 56 Because these various types of land are subject to varying degrees of tribal influence and control, 51 See Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) (reaffirming the doctrine of tribal sovereign immunity). 52 This term is designed to encompass a few separate concepts: the question of whether a case implicating Indian affairs should be brought in state or tribal court; the question of whether state or tribal law should apply to such a case; and the question of which decisionmaker should determine the preceding two issues. 53 See Williams v. Lee, 358 U.S. 217 (1959) (holding that non-indians cannot sue Indians in state court for disputes centered on the reservation); Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998) (reaffirming that tribes enjoy immunity from suit even for off-reservation activities). 54 See Nevada v. Hicks, 533 U.S. 353, 367 (2001). 55 Id. at

17 there is no obvious territorial marker of tribal authority. Further, pockets of land outside Indian reservations, including all dependent communities within the borders of the United States and all allotted land with existing Indian title, also qualify as Indian country by federal statute. 57 Therefore, though the geographical boundaries of the reservation may be clear, the geographical reach of the tribe s power is far less so. 58 Thus, a largely unintended byproduct of the aborted assimilationist program has been to increase the gray areas in which both states and tribes can plausibly claim jurisdiction. B. Conflicting Rules: The Supreme Court and Case Allocation The second part of this section considers in turn the two faces of the Supreme Court in Indian jurisdiction cases: first as a protector of tribal autonomy, and second as an enforcer of limits on tribal power. It argues that the Court, in both roles, has used rules establishing which forum can or must hear a case as its primary means of implementing policy. 1. From Williams to Wold: Tribal Autonomy as Procedural Rule Over the past few decades, the Supreme Court has, in a few landmark cases, announced a set of procedural rules designed to protect tribal autonomy. This section considers those key cases and the ways in which they reflect differing views about the role of state courts in tribal affairs. a. Williams v. Lee In the 1958 case of Williams v. Lee, 59 the Court established a jurisdictional principle that ensured that Indian defendants would be not be required to defend themselves against non- 56 Canby, supra note 17, at U.S.C. 1151; see also Canby, supra note 17, at See, e.g., Brendale v. Confederated Yakima Nation, 492 US 408 (1989) (discussed infra at note 201). 16

18 Indians in possibly hostile state courts. Reversing the Arizona state courts, the Supreme Court held that a non-indian proprietor of a general store on the Navajo Indian Reservation who wished to sue a Navajo couple for unpaid debts was obliged to do so in tribal court. Further, the Court established a famous test for determining whether a given state assertion of jurisdiction over Indian country was legitimate: whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. 60 Williams v. Lee had a powerful philosophical influence on lower courts. 61 The Court s succinct definition of tribal sovereignty as the right of reservation Indians to make their own laws and be ruled by them is perhaps the most widely quoted phrase in the Indian-law canon. 62 Beyond Williams s strong defense of tribal autonomy, however, the case can also be interpreted as setting forth two subsidiary principles. First, although Williams s holding was framed in terms of broad principles of tribal sovereignty, Williams s most immediate effect was to establish a fairly rigid procedural rule: if a non-indian sues an Indian in a case arising in Indian country, that case must be heard in tribal court. 63 While, as the Court recognized, such a rule provides a great deal of protection to tribes and tribal defendants, it also presents certain practical difficulties. First, the rule assumes that the identities of plaintiff and defendant remain stable in any given case. Often, however, this will not be so. In certain cases such as a complex contract dispute it may not initially be clear U.S. 217 (1958). 60 Id. at See, e.g., Tempest Recovery Services v. Belone, 2003 N.M.19 (2003). 62 Laurie Reynolds has described this portion of the opinion as one of the most frequently cited passages in federal Indian law. See Reynolds, supra note 6, at As Reynolds notes, [p]erhaps because of the ambiguous analytical basis of the holdings, state courts have seized upon the specific facts of [Williams] rather than struggle to apply vague notions about the infringement of tribal sovereignty or federal preemption to determine the limits of state court adjudicatory power. Reynolds, supra note 6, 17

19 who is liable to whom, and both parties may believe themselves to be aggrieved. In such cases, which party becomes the plaintiff and which the defendant may be determined simply by who files suit first. Similarly, someone who is sued and then brings a counterclaim may be both plaintiff and defendant in the same action. 64 Moreover, the rule of Williams assumes that a tribal court will always be available to hear a dispute. This is not always the case, not only because some tribes are too small or poor to maintain judicial systems, 65 but because a tribal court is under no obligation to exercise the full extent of its jurisdiction; many tribes, for example, limit access to their courts to tribe members. 66 A more substantive effect of Williams, however, may have been to foster the perception that, in order for tribes to enjoy the right to be ruled by their own laws, such laws must be enforced in tribal court. Of course, on the facts of Williams itself, few would disagree that application of Arizona law to the tribal defendants presumably what would have occurred had the plaintiffs been allowed to proceed in state court would have undermined Navajo self-rule by substituting another sovereign s laws as the decisional law in the case. The Court, however, went further, suggesting that the mere exercise of state jurisdiction would undermine the authority of the tribal courts over Reservation affairs. 67 Williams therefore firmly established the idea that tribal adjudication, not application of tribal law, was the primary device by which tribal sovereignty could be furthered. at See Wold v. Three Affiliated Tribes of the Fort Berthold Reservation, 476 U.S. 877, 891 (1986) (recognizing problem created by counterclaim asserted against Indian who had sued non-indian in North Dakota court). 65 While some tribes have well-developed judicial systems, others still rely on very informal single-judge courts operated on a part-time basis without supplementary services. See Canby, supra note 17, at Reynolds, supra note 6, at 577 (noting that many tribes follow model ordinance originally provided by the Department of the Interior, which did not provide for jurisdiction over nonmembers) U.S. at

20 This principle carried the potential for some unfairness to individuals, since a strict application of Williams could have the effect of leaving certain plaintiffs without a remedy in situations where tribal court was unavailable. A more subtle and more important effect of Williams, however, may have been to encourage state courts to think of tribal autonomy only in terms of tribal adjudication. In other words, once a state court has satisfied itself that an assertion of jurisdiction over a given case would comport with Williams s requirements either because the defendant is non-indian or because substantial parts of the transaction occurred off the reservation it may conclude that it has done all that is necessary to respect tribes rights to make their own laws and be ruled by them. 68 None of this is to slight the importance of Williams, which remains a landmark case for tribal autonomy and am important guarantee of tribal rights. Yet while the principles underlying Williams remain vital, the specific jurisdictional rule the Court chose to implement those principles is perhaps in some ways outdated, and its rigidity may constrain state courts in ways that are not always beneficial to tribes. b. Fostering Tribal-Court Control Over Tribal Disputes: Fisher v. District Court In Fisher v. District Court, 69 a case involving a tribe member s efforts to adopt a child who was also the subject of a tribal custody dispute, the Court reinforced and extended the central principle of Williams by suggesting that state courts lack jurisdiction against all Indian defendants, even in situations where the plaintiff is also Indian. Noting that state jurisdiction 68 As Reynolds notes, state courts often give Williams its narrowest possible scope, refus[ing] to adjudicate disputes involving Indians or reservation affairs only if the defendant is an Indian and if the transaction involves no substantial off-reservation contacts. That is, state courts generally assert jurisdiction over suits brought against a non- Indian defendant even if the transaction arose in Indian country; similarly, many cases hold that state court adjudication is proper in lawsuits filed against an Indian defendant if the facts reveal substantial off-reservation 19

21 over a dispute among Indians was required to meet at least the standard set by Williams, 70 the Court found that to allow the state to assume jurisdiction in this case would be to subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves. 71 From the standpoint of promoting tribal autonomy and avoiding interference with tribal courts decision-making powers, the Court s decision was abundantly justified. Many commentators had urged that states not be permitted to interfere with Indian custody disputes among Indians on the grounds that they were core matters of tribal identity. 72 Further, in this case, the risk that the tribal court s authority would be undermined by a conflicting state adjudication was a real one: The plaintiff had turned to Montana court while a related custody proceeding was pending in tribal court, and in defiance of the tribal court s holding that it had exclusive jurisdiction over the case. 73 Nonetheless, the Court s opinion appeared to rest in part on the idea that, even had these additional factors not been present, state-court jurisdiction would undermine the right of the Northern Cheyenne Tribe to govern itself independently of state law. 74 As in Williams, therefore, the Court apparently assumed both that state courts would apply state law and that state-court adjudication of suits against Indian defendants would inevitably undermine tribal contacts. See Reynolds, supra note 6, at U.S. 382, 386 (1976). 70 Id. at Id. at Indeed, just two years after Fisher was decided, Congress passed the Indian Child Welfare Act, which grants tribes exclusive jurisdiction over child custody matters unless they are in a P.L. 280 state. 73 In an unusual procedure, the Montana trial court certified the question of its jurisdiction to the Northern Cheyenne Tribe, which found that the tribe possessed exclusive jurisdiction. 424 U.S. at 384. Although the Montana trial court then dismissed the case for lack of jurisdiction, the Montana Supreme Court overturned this ruling. Id. at

22 authority. Further, going beyond Williams, the Court indicated that the need to allow tribal courts to decide tribal disputes should override the preferences of individual Indians. Responding to the argument that a bar on state-court access would be unfair to Indian plaintiffs, the Fisher Court found that even if a jurisdictional holding occasionally results in denying an Indian plaintiff a forum to which a non-indian has access, such disparate treatment of the Indian is justified because it is intended to benefit the class of which he is a member by furthering the congressional policy of Indian self-government. 75 Thus, the Court suggested, the decision to deny individual Indian plaintiffs access to state court was in the best interests of Indians as a whole. The Court s reasoning is particularly surprising given the existence of a seemingly far more plausible (and less paternalistic) justification for the result in Fisher that concern for the rights of tribal defendants required that the claims asserted against them be decided in tribal forums and/or according to tribal law. 76 Thus, Fisher in essence replicated some of the problems created by Williams adopting a wholesale procedural rule as a way of handling complex issues of tribal autonomy, and articulating an unnecessarily constricted view of the scope of tribal interests. In particular, the Court failed to differentiate between the interests of individual Indian litigants from the interest of the tribe as a whole and, in consequence, failed to explain convincingly why it had chosen to favor the latter at the possible expense of the former. Therefore, although as had been the 74 Id. at Id. at In Strate, 520 U.S. at 459, for example, the Court expressed concerns about requiring non-indians to defend commonplace state highway accident claim in an unfamiliar [i.e., tribal] court. Presumably the same logic should militate against requiring Indians to defend against lawsuits in unfamiliar state courts. 21

23 case in Williams the result in Fisher was entirely sensible and justified, Fisher s simple hands-off rule may have been at once too rigid and too narrow a way of understanding how state courts should take into account tribal interests in litigation that might come before them. c. Ensuring Access: The Wold Cases Where Williams addressed the consequences of a suit by a non-indian against an Indian, Wold I 77 and Wold II 78 concerned the opposite situation: the degree to which state courts were obliged to provide access to Indian plaintiffs suing non-indian defendants. 79 In the Wold cases, the Supreme Court considered whether North Dakota could lawfully place conditions on tribes access to courts, and concluded that it could not. The Wold cases arose out of the following situation. North Dakota courts had historically asserted jurisdiction over Indian country in cases not involving Indian land interests. After P.L. 280 was passed, North Dakota courts interpreted the law as confirming jurisdiction they already possessed. In 1963, in accordance with amendments to P.L. 280 permitting new assumptions of jurisdiction with tribal consent, the North Dakota legislature enacted a new statute, Chapter 27-19, which provided that jurisdiction of the state of North Dakota shall be extended over all civil claims for relief which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. 80 Chapter further provided that, upon such acceptance, civil laws of this state that are of general application to private property would also apply in 77 Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering ( Wold I ), 467 U.S. 138 (1984). 78 Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering ( Wold II ), 476 U.S. 877 (1986). 79 See Wold I, 467 U.S. at 140 (noting that the case was somewhat unusual in a central respect because the Tribe seeks, rather than contests, state-court jurisdiction, and the non-indian party is in opposition ). Although it is actually unclear how far Wold I and Wold II s holdings extend, they have generally been interpreted by state courts to mandate access for Indians who wish to sue non-indians in state courts. See Reynolds, supra note 6, at Wold II at 476 U.S. at 880 (quoting N.D. Cent. Code (Supp. 1985)). 22